In Clennon v. Toronto East General Hospital HRTO 1242 the Ontario Human Rights Tribunal ruled that the respondent employer violated Mrs. Clennon's right to be free from discrimination based on her age. Ordinarily, one would welcome such a finding. However, such was not the case here. The reason for this follows from the limited and bizare nature of the Code violation which the Tribunal found. The Tribunal ruled that Toronto East General Hospital violated Mrs. Clennon's righs under the Code not by virtue of her termination "without cause" and to replace her with a "younger and cheaper worker" as she alleged in her compliant but because they failed to allow her an opportunity to improve her performance pursuant to their polices before terminating her employment of some 24 years.
Shockingly, the Tribunal came to its conclusion that Mrs. Clennon's performance was wanting not from hearing from witnesses with actual knowledge of the various performance issues raised by the hospital in defence but instead as relayed by the then Director, Ms. Natalie Cournoyea. The Tribunal came to this conclusion in the face of the following findings of fact:
1. Despite her denials Natalie Cournoyea stated to Mrs. Clennon,
(i) "Why don't your retire;
(ii) "Why don't you consider retiring ? your husband is retired
and it would be good to be retired with him".
2. Toronto East General Hospital fired Mrs. Clennon "without cause"
after 24 years of service as an obstetrial nurse and for roughly
three of those years as Manager of the Birth Centre by denying
her common law severence unless she signed a release in their favour
acknowledging that they did not violate her rights under the
Ontario Human Rights Code;
3. The worker who replaced Mrs. Clennon, one Claudette Manhue, was
some 16 years younger than Mrs. Clennon and Mrs. Clennon had won
the competiton for the same position some three years prior
against the same worker;
4. The Tribunal expressly found that:
"I have found that none of the specific incidents
relied upon to support the applicant's termination
were specifically raised with her as performance
issues. The Director admittedly never brought home
to the applicant that her failure to address
performance deficiencies could jeopardizde her
continued employment at the hospital."
Non-hearsay ?
In response to the Mrs. Clennon's application for reconsideration of this decision she alleged, amongst other errors, that the non-discriminatory motive - namely - the alleged poor performance to justify her dismissal relied on inadmissable hearsay. This is what the Tribunal ruled in response on the reconsideration application:(see 2010 HRTO 1693)
"I also do not agree with the characterization of
the 360-degree assessment and the performance-related
information from e -mails, letters and notes as "hearsay
evidence." Evidence is hearsay evidence when a third party
relates what was told to her in an attempt to assert the
truth of the statement made. In the instant case, the respondent
was not proferring the 360-degree assessment and other
performance-related information in order to establish the truth
of the statement made therin. Rather, this information was put
in support of the Director's evidence that she relied on these
performance-related issues as the explanation for her termination
decision, and that the applicant's age was not a factor. The
relevant issue for me was why did the Director make the decision
to terminate the applicant's employment and was her age a factor
in that decision, and the Director provided direct evidence on
that issue."
The classic danger of hearsay
illustrated by Tribunal decision:
Notwithstanding the pronouncement quoted above regarding the purpose for which Toronto East General Hospital adduced the alleged poor-performance evidence, the Tribunal's ruling on remedy (2010 HRTO 506) clearly reveals that the Tribunal relied on this evidence for its truth. This is what the Tribunal wrote on this point:
"In making my determination, I am instructed by the adage that
in order to solve a problem, a person first must recognize that
there is a problem. I did not see this from the applicant. As
a result, in my view, it is more likely than not that, even had
a performance management plan been implemented, the applicant is
unlikely to have been willing to accept and acknowledge her
performance deficiencies as a first step to correcting them.
Accordingly, I find that even if a performance managment plan had
been implemented, the applicant's employment as Manager still would
have been terminated by the respondent. In terms of the timing of
the termination, I find that a period of over one year for
implementation of a performance management plan is not unreasonable,
with the result that I find that the applicant's employment as
Manager would have been terminated on July 5, 2005 in any event."
Human Rights Tribuanl
Code of Conduct:
Article 43 of the Code of Conduct applicable to members of the Tribunal stipulates that -
"A member shall make each decision on the true merits and justice
of the case, based on law and on the evidence led before him or her."
Article 44 stipulates that -
"A member shall apply the law to the evidence in good faith and to the
best of her/her ability"...
Commentary and analysis:
Public policy in Ontario long has recognized the paramount importance which the right to be free from discrimination and harassment based on age and other enumerated grounds plays in our society. The legislative decision to enact laws and a system of adjudication to resolve these important claims is consistent with the quasi-constitutional nature of these rights. As laudable as these steps are, they are rendered meaningless when the body adjudicating those important legal rights has inadequate safe-guards to ensure that decisions are rendered in accorance with law. The Tribunal would be wise to have reconsideration applications which raise important questions of law touching on the fairness of a case referred to either the Chair or a full-board for review. In addition, the Tribunal and or law-makers in Ontario ought to review the very lementable condition which sees litigants like Mrs. Clennon spend significant sums of money to assert what is a quasi-constitutional right - often against state actors like Toronto East General Hospital and others - who spend public funds with impunity to defeat these rights and indeed the poor litigants and are unable to recover the cost of their legal representation in these proceedings. How can this be right ?
Note: This piece is written for the sole purpose of drawing attention to a matter of public importance in the community and to encourage public discourse.
Saturday, March 5, 2011
Friday, March 4, 2011
U.S. SUPREME COURT RULES FIRST AMENDMENT SUPREME !
In its recent ruling in Snyder v. Phelps et al the U.S. Supreme Court once again affirmed the right of freedom of speech even if the content of the speech is offensive and even outrageous. The court upheld the decision of the U.S. Federal Court of Appeal(4th Circuit) setting aside a jury award to Mr. Snyder for intentional infliction of mental distress and other torts based on the offensive and outrageous content of the suject speech relying on a state statute.
The basic facts:
Mr. Snyder was awarded a multi-million dollar judgment by a jury in a civil action which he brought against Mr. Phelps and his followers from the Westboro Baptist Church as a result of injury he alleged he suffered as a result of their hurtful and outrageous speech and demonstration at his son's funeral held at a local Catholic church. Mr. Snyder was buring his son - a U.S. soldier who died in combat in Iraq. Members of this church are fundamentally opposed to homosexuality and especially homosexuality in the U.S. Army. Consequently, the followers of this church advocate that God hates the U.S. and make it a practice to communicate their message at the funerals of U.S. military personnel. The court record confirmed that the protesters in fact followed the applicable city ordinances with respect to their protest and their message was largly resticted to messages on picket signs. The messages included the following: "God hates fags", "Fags doom nations", "The U.S. is doomed", "Thank God for dead soldiers", "Priests rape boys" and "You're going to hell." At trial a jury found that the conduct of the protesters was outrageous and found for Mr. Snyder.
U.S. Supreme Court Analysis:
The U.S. Supreme Court begins its consideration of the constitutional issue raised in the case by clearly acknowledging the fundamental and paramount place that the First Amendment right to free speech holds in the legal system. Commensurate with this approach, the court does not merely accept the findings and conclusions of the lower court under some theory of judicial deference to the lower courts "discretion" but it reviews the entire record with a view to satisfying itself that the lower courts conclusions are sound in law. Following a review in this manner, the court determined that the speech in question involved comment on public issues and the effect of the state statutory enactment relied upon by the jury awarding damages to Mr. Snyder effectively curtained the content of the protesters speech by virtue of the award of to Mr. Snyder. The court acknowledged that the content of the speech was hurtful and outrageous. However, the court pointed out that they could not censor or punish the picketers merely becasue the content of their speech was hurtful. Chief Justice Roberts wrote:
"Speech is powerful. It can stir people to action
, move them to tears of both joy and sorrow, and as
it did here - inflict great pain. On the facts before
us, we cannot react to that pain by punishing the
speaker. As a nation we have chosen a different course -
to protect even hurtful speech on public issues to ensure
that we do not stifle public debate. That choice requires
that we shield Westboro from tort liability for its
picketting in this case."
Commentary:
Some observers will argue that the courts have no business second-guessing and effectively substituting their opinion for that of the democratically elected law-makers who passed the state law circumscribing the picketter's rights to free speach. These observers fail to understand and appreciate the depth, purpose and scope of the U.S. Constitution. Unlike constitutions in other "free and democratic" nations, the drafters of the U.S. Constitution appear to have intended to make a clear departure from English law. A constitution under the U.S. model is the supreme law of the land because it provides the legal framework within which the legislature remains accountable to all of the people all of the time. It is not for the state to have absolute authority to decide what speech is acceptable. This ruling is consistent with what I understand to be the rule of law - namely - the law applies to all - including the state. When the state is above the law - either by design, omission or custom individual rights are left vulnerable to the arbitrary exercise of judicial discretion and state power.
Note: This piece is written for the sole purpose of encouraging public discourse on a matter of publice importance.
The basic facts:
Mr. Snyder was awarded a multi-million dollar judgment by a jury in a civil action which he brought against Mr. Phelps and his followers from the Westboro Baptist Church as a result of injury he alleged he suffered as a result of their hurtful and outrageous speech and demonstration at his son's funeral held at a local Catholic church. Mr. Snyder was buring his son - a U.S. soldier who died in combat in Iraq. Members of this church are fundamentally opposed to homosexuality and especially homosexuality in the U.S. Army. Consequently, the followers of this church advocate that God hates the U.S. and make it a practice to communicate their message at the funerals of U.S. military personnel. The court record confirmed that the protesters in fact followed the applicable city ordinances with respect to their protest and their message was largly resticted to messages on picket signs. The messages included the following: "God hates fags", "Fags doom nations", "The U.S. is doomed", "Thank God for dead soldiers", "Priests rape boys" and "You're going to hell." At trial a jury found that the conduct of the protesters was outrageous and found for Mr. Snyder.
U.S. Supreme Court Analysis:
The U.S. Supreme Court begins its consideration of the constitutional issue raised in the case by clearly acknowledging the fundamental and paramount place that the First Amendment right to free speech holds in the legal system. Commensurate with this approach, the court does not merely accept the findings and conclusions of the lower court under some theory of judicial deference to the lower courts "discretion" but it reviews the entire record with a view to satisfying itself that the lower courts conclusions are sound in law. Following a review in this manner, the court determined that the speech in question involved comment on public issues and the effect of the state statutory enactment relied upon by the jury awarding damages to Mr. Snyder effectively curtained the content of the protesters speech by virtue of the award of to Mr. Snyder. The court acknowledged that the content of the speech was hurtful and outrageous. However, the court pointed out that they could not censor or punish the picketers merely becasue the content of their speech was hurtful. Chief Justice Roberts wrote:
"Speech is powerful. It can stir people to action
, move them to tears of both joy and sorrow, and as
it did here - inflict great pain. On the facts before
us, we cannot react to that pain by punishing the
speaker. As a nation we have chosen a different course -
to protect even hurtful speech on public issues to ensure
that we do not stifle public debate. That choice requires
that we shield Westboro from tort liability for its
picketting in this case."
Commentary:
Some observers will argue that the courts have no business second-guessing and effectively substituting their opinion for that of the democratically elected law-makers who passed the state law circumscribing the picketter's rights to free speach. These observers fail to understand and appreciate the depth, purpose and scope of the U.S. Constitution. Unlike constitutions in other "free and democratic" nations, the drafters of the U.S. Constitution appear to have intended to make a clear departure from English law. A constitution under the U.S. model is the supreme law of the land because it provides the legal framework within which the legislature remains accountable to all of the people all of the time. It is not for the state to have absolute authority to decide what speech is acceptable. This ruling is consistent with what I understand to be the rule of law - namely - the law applies to all - including the state. When the state is above the law - either by design, omission or custom individual rights are left vulnerable to the arbitrary exercise of judicial discretion and state power.
Note: This piece is written for the sole purpose of encouraging public discourse on a matter of publice importance.
Saturday, February 5, 2011
Tuesday, January 18, 2011
Clennon v. Toronto East General Hospital : A Case Comment
Basic Facts:
Mrs. Clennon was trained as a mid-wife and registered nurse in England. In 1981 she was recruited from England by the Toronto East General Hospital to join their birthing unit. She commenced employment with Toronto East General Hospital in Janury 1981. By all accounts Mrs. Clennon was an exceptional and highly regarded nurse with considerable experience and expertise in the obstetrial area. In 2002 the hospital managment approached her to take up the position of Manager for the birthing centre. They were fully aware that she lacked some of the skills necessary for the job but were satisfied that with proper coaching she could pick them up and they promissed to do just that. Mrs. Clennon took up the position in 2002 and was terminated on July 5th, 2005 without cause. Mrs. Clennon was 59 years of age at the time of her dismissal. She was offered 18 months severance on the condition that she sign a release denying that her rights under the Ontario Human Rights Code were violated by the hospital. Mrs. Clennon refused to sign this release and as a result did not receive the 18 months severance. The hospital did, however, pay her severance and termination pay of some $36,000 under the Employment Standards Act. Mrs. Clennon was subsequently replaced by a younger worker - Claudette Manhue - whom she had previously beat out in the job competition for Manager in 2002. Some time after Clennon's dismissal and Manhue's hiring the hospital dispensed with one of the two nursing manager positions which they had when Mrs. Clennon was manager and Ms. Manhue was given enhanced responsibilities and increased pay. The monetary saving to the hospital was considerable since each nursing manager was paid roughly $80,000 compared to the $90,000 paid Ms. Manhue.
Thrust of human rights
complaint:
Mrs. Clennon brougth a human rights complaint to the Ontario Human Rights Commission alleging that she was dismissed on account of her age contrary to the Ontario Human Rights Code. She was fired without cause. Her replacement - Claudette Manhue was 16 years younger.
Toronto East General Hospital's
Defence:
Although the hospital purported to terminate Ms. Clennon's employment without cause and paid her severance and termination pay under the Employment Standards Act, their defence to her allegation of the Code violation was that she was fired for poor work performance. The hospital presented a book of documents with a litany of alleged complaints by various nurses and individuals - none of whom were called as witnesses by the hospital. The hospital called two witnesses - Natalie Cournooyea - Director of Nursing and Mr. Milton Obrodovich - Vice-President of Patient Care. The gist of the poor perforamance evidence was that a litatny of complaints were brought to the attention of the Director and she decided to terminate Mrs. Clennon's services. Unfortunately, Ms. Cournoyea appears to have mislead the Vice-President - whose authorization was necesary for the dismissal - by informing him that she had taken all steps to help her improve her performance before deciding on termination pursuant to the hospital's own policies.
Mrs. Clennon's testimony:
Mrs. Clennon was very consistent in her evidence in both denying the alleged poor performance allegations and in the fact that they were never communicated to her as being issues that put her job in jeapordy. The Tribunal's following finding of fact on this point is very telling:
"I have found that none of the specific incidents
relied upon to support the applicant's termination
were specifically raised with her as performance
issues. The Director admittedly never brought home
to the applicant that her failure to address performance
deficiencies could jeapordize her continued employment
at the hospital."
Tribunal Ruling:
The Tribunal went on to rule that Toronto East General Hospital had violated the Ontario Human Rights Code in effecting Mrs. Clennon's dismissal but somehow the Tribunal concluded that the hospital had succeeded in establishing a non-discriminatory motive for the dismissal - Mrs.Clennon's poor work performance. The Tribunal ruled that the Code violation resulted from the hospital's failure to provide Mrs. Clennon with an opportunity to improve her performance pursuant to their policy. Having found this limited violation of the Code the Tribunal reasnoned that reinstatement was not a viable remedy in the circumstances. The Tribunal found as a fact that Mrs. Cournoyea uttered the following two age aniums statements to Mrs. Clennon prior to the dismissal: 1. "Why don't you retire ?" 2.
"Why don't you consider retiring ? your husband is retired and it would be good to be retired with him."
Reconsideration sought
and denied by Tribunal:
Mrs. Clennon sought reconsideration of this decision. The challenge was based on amongst other grounds the fact that the Tribunal had effectively relied on pure hearsay evidence in finding that the employer had established a non-discriminatory motive for her dismissal. The Tribunal summarily dismissed her application. This is what the Tribunal wrote on this point:
"Evidence is hearsay evidence when a third party
relates what was told to her in an attempt to assert
the truth of the statement made. In the instant
case, the respondent was not proferring the 360-degree
assessment and other performance-related information
in order to establish the truth of the statements made
therein. Rather, ths information was put forward in
support of the Director's evidence that she relied on
these performance-related issues as the explanation for
her termination decision, and that the applicant's age
was not a factor. The relevant issue for me was why did
the Director make the decision to terminate the
applicant's employment and was her age a factor in that
decision, and the Director provided direct evidence on
that issue."
The following quote fromt the Tribunal's reconsideration decision calls into question the soundness of the Tribunal's reasoning and analysis:
"...the fact that some performance concerns were not
raised with the applicant by the Director does not
necessarily mean that the Director didn't nonetheless
have these concerns. Indeed, upon an exhaustive review
of the evidence in my Decision, it was my determination
that while the Director did not raise some of the specific
performance concerns with the applicant, she nonetheless
was concerned about the applicant's performance and that
was the reason she made the decision to terminate."
Analysis and commentary:
Our higher courts have consistently characterized human rights legislation as quasi-constitutional. This quasi-constitutional status is rendered illusory if we allow inferior tribunals like the Ontario Human Rights Tribunal to undermine the clear and positive legislative intent of the legislation. It is one thing to provide inferior tribunals like the Ontario Human Rights Tribunal with flexibility and latitude to make rules and to effectively govern their proceedings - but such tribuanls must always do so in accordance with law. Established legal principles in employment law such as the need to bring home to a worker that their conduct is wanting is not a trivial matter. The ability to effectively challenge an allegation of poor performance is effectively denied where the employer calls no viva voce evidence. A proper application of the law calls for an adverse inference being drawn against the party in control of evidence who fails to call it. The individuals who authored the various documents making up the poor performance evidence were employees of the hospital. They ought to have been called and subjected to cross-examination. This decision is not only patently unreasonable but it is also perverse.
Note: This piece is written for the sole purpose of sharing views and ideas on an issue of public importance - namely - human rights.
Mrs. Clennon was trained as a mid-wife and registered nurse in England. In 1981 she was recruited from England by the Toronto East General Hospital to join their birthing unit. She commenced employment with Toronto East General Hospital in Janury 1981. By all accounts Mrs. Clennon was an exceptional and highly regarded nurse with considerable experience and expertise in the obstetrial area. In 2002 the hospital managment approached her to take up the position of Manager for the birthing centre. They were fully aware that she lacked some of the skills necessary for the job but were satisfied that with proper coaching she could pick them up and they promissed to do just that. Mrs. Clennon took up the position in 2002 and was terminated on July 5th, 2005 without cause. Mrs. Clennon was 59 years of age at the time of her dismissal. She was offered 18 months severance on the condition that she sign a release denying that her rights under the Ontario Human Rights Code were violated by the hospital. Mrs. Clennon refused to sign this release and as a result did not receive the 18 months severance. The hospital did, however, pay her severance and termination pay of some $36,000 under the Employment Standards Act. Mrs. Clennon was subsequently replaced by a younger worker - Claudette Manhue - whom she had previously beat out in the job competition for Manager in 2002. Some time after Clennon's dismissal and Manhue's hiring the hospital dispensed with one of the two nursing manager positions which they had when Mrs. Clennon was manager and Ms. Manhue was given enhanced responsibilities and increased pay. The monetary saving to the hospital was considerable since each nursing manager was paid roughly $80,000 compared to the $90,000 paid Ms. Manhue.
Thrust of human rights
complaint:
Mrs. Clennon brougth a human rights complaint to the Ontario Human Rights Commission alleging that she was dismissed on account of her age contrary to the Ontario Human Rights Code. She was fired without cause. Her replacement - Claudette Manhue was 16 years younger.
Toronto East General Hospital's
Defence:
Although the hospital purported to terminate Ms. Clennon's employment without cause and paid her severance and termination pay under the Employment Standards Act, their defence to her allegation of the Code violation was that she was fired for poor work performance. The hospital presented a book of documents with a litany of alleged complaints by various nurses and individuals - none of whom were called as witnesses by the hospital. The hospital called two witnesses - Natalie Cournooyea - Director of Nursing and Mr. Milton Obrodovich - Vice-President of Patient Care. The gist of the poor perforamance evidence was that a litatny of complaints were brought to the attention of the Director and she decided to terminate Mrs. Clennon's services. Unfortunately, Ms. Cournoyea appears to have mislead the Vice-President - whose authorization was necesary for the dismissal - by informing him that she had taken all steps to help her improve her performance before deciding on termination pursuant to the hospital's own policies.
Mrs. Clennon's testimony:
Mrs. Clennon was very consistent in her evidence in both denying the alleged poor performance allegations and in the fact that they were never communicated to her as being issues that put her job in jeapordy. The Tribunal's following finding of fact on this point is very telling:
"I have found that none of the specific incidents
relied upon to support the applicant's termination
were specifically raised with her as performance
issues. The Director admittedly never brought home
to the applicant that her failure to address performance
deficiencies could jeapordize her continued employment
at the hospital."
Tribunal Ruling:
The Tribunal went on to rule that Toronto East General Hospital had violated the Ontario Human Rights Code in effecting Mrs. Clennon's dismissal but somehow the Tribunal concluded that the hospital had succeeded in establishing a non-discriminatory motive for the dismissal - Mrs.Clennon's poor work performance. The Tribunal ruled that the Code violation resulted from the hospital's failure to provide Mrs. Clennon with an opportunity to improve her performance pursuant to their policy. Having found this limited violation of the Code the Tribunal reasnoned that reinstatement was not a viable remedy in the circumstances. The Tribunal found as a fact that Mrs. Cournoyea uttered the following two age aniums statements to Mrs. Clennon prior to the dismissal: 1. "Why don't you retire ?" 2.
"Why don't you consider retiring ? your husband is retired and it would be good to be retired with him."
Reconsideration sought
and denied by Tribunal:
Mrs. Clennon sought reconsideration of this decision. The challenge was based on amongst other grounds the fact that the Tribunal had effectively relied on pure hearsay evidence in finding that the employer had established a non-discriminatory motive for her dismissal. The Tribunal summarily dismissed her application. This is what the Tribunal wrote on this point:
"Evidence is hearsay evidence when a third party
relates what was told to her in an attempt to assert
the truth of the statement made. In the instant
case, the respondent was not proferring the 360-degree
assessment and other performance-related information
in order to establish the truth of the statements made
therein. Rather, ths information was put forward in
support of the Director's evidence that she relied on
these performance-related issues as the explanation for
her termination decision, and that the applicant's age
was not a factor. The relevant issue for me was why did
the Director make the decision to terminate the
applicant's employment and was her age a factor in that
decision, and the Director provided direct evidence on
that issue."
The following quote fromt the Tribunal's reconsideration decision calls into question the soundness of the Tribunal's reasoning and analysis:
"...the fact that some performance concerns were not
raised with the applicant by the Director does not
necessarily mean that the Director didn't nonetheless
have these concerns. Indeed, upon an exhaustive review
of the evidence in my Decision, it was my determination
that while the Director did not raise some of the specific
performance concerns with the applicant, she nonetheless
was concerned about the applicant's performance and that
was the reason she made the decision to terminate."
Analysis and commentary:
Our higher courts have consistently characterized human rights legislation as quasi-constitutional. This quasi-constitutional status is rendered illusory if we allow inferior tribunals like the Ontario Human Rights Tribunal to undermine the clear and positive legislative intent of the legislation. It is one thing to provide inferior tribunals like the Ontario Human Rights Tribunal with flexibility and latitude to make rules and to effectively govern their proceedings - but such tribuanls must always do so in accordance with law. Established legal principles in employment law such as the need to bring home to a worker that their conduct is wanting is not a trivial matter. The ability to effectively challenge an allegation of poor performance is effectively denied where the employer calls no viva voce evidence. A proper application of the law calls for an adverse inference being drawn against the party in control of evidence who fails to call it. The individuals who authored the various documents making up the poor performance evidence were employees of the hospital. They ought to have been called and subjected to cross-examination. This decision is not only patently unreasonable but it is also perverse.
Note: This piece is written for the sole purpose of sharing views and ideas on an issue of public importance - namely - human rights.
Saturday, January 8, 2011
Was Patricia Innis the victim of a jealous spouse ?
There is no doubt that the police did not investigate the question of whether any other person could have a motive to murder Patricia Innis. They arrested and charged Wilton Smith the day following the murder and clearly articulated the theory of their case to the media. Wilton Smith was awaiting disposition on a charge of uttering threats involving Ms. Innis and therefore they reasoned that he killed her so she could not testify against him.
As is so often the case in situations where the Defendant asserts that they were wrongly convicted, evidence presented at the trial puts a very different gloss on the initial police theory of the case. The Wilton Smith case is no exception and is somewhat unique. The case is unique because no one witnessed Wilton Smith commit the murder. No one placed Wilton Smith at the scene of the crime other than Wilton Smith himself. Iona Davis claimed that she discovered the dead body in the apartment that she shared with her and her infant child - Ocheann. The evidence offered by Iona Davis and Delroy Benjamin was that Wilton Smith drew Delroy Benjamin out of the house by telling him that his employer was hiring and that he Delroy should come down and apply for a job. While Delroy is away - someone sneeks into the home and murders Patrica Innis. This version of the murder does two things. Firstly, it tends to absolve Davis since she is the one who called the police. Secondly, it removes Delroy Benjamin from the crime scene and at the same time casts a shadow over Wilton Smith.
Analysis of police theory
of Wilton Smith liability:
The police theory of liability is crude and simplistic. Wilton Smith was awaiting trial on March 12th, 1992 on a charge of uttering a threat to cause death to Patricia Innis therefore he killed her so she could not testify against him. Iona Davis discovered the body and called the police. Delroy Benjamin was lured out of the house by Wilton Smith so that he could sneek in the apartment and murder Patricia Innis. After Wilton Smith is committed to stand trial police somehow attend at Joseph Pryce's place of employment with a photo-lineup prepared to show to him and he picks Smith out as "the man who came in to sharpen the machete." Pryce testified that he did not contact the police prior to this and they did not contact him. He said he was surprised when the police arrived and wanted to talk to him. Not surprisingly the jury found this quite remarkable and asked the trial judge how did the police come to know of Joseph Pryce. The judge told them there was in fact no evidence of this in the trial.
Was this a jealous spouse
murder ?
Iona Davis and Delroy Benjamin were a married couple. Evidence at the trial confirmed that prior to coming to Canada they lived as a couple, had two children together and were formally married in March 1993. Ms. Davis arrived in Canada from Jamaica on January 29th, 1992. Prior to her arrival in Canada, Mr. Benjamin was already in Canada and he admitted to sleeping at Ms. Innis' home "several times". Ms. Davis started residing with Ms. Innis in February - some two to three weeks prior to the murder on March 10th, 1992.
Did Mr. Benjamin
impregnate Patricia Innis ?
Wilton Smith testified at his trial that some time in February, 1992 Ms. Innis reluctantly informed him that she was pregnant and that Delroy Benjamin was the father. He further testified that she decided and to his knowledge she had an abortion some time in February. Mr. Smith testified that Ms. Innis was very ashamed of the situation and she requested that he keep it a secret and not tell anyone. Iona Davis testified that she was informed of Ms. Innis's pregnancy by Delroy Benjamin. Delroy Benjamin testified that Ms. Innis told him "in a sense that she was pregnant." Keep in mind the timing of these three incidents, namely, Iona Davis' moving in with Patricia Innis, news of the pregnancy and the abortion. Let us now examine the testimony around these issues:
Defence Lawyer: Now, the relationship that you had with Patricia we have
discussed. You guys were very, very good friends I think is how
you put it ?
Benjamin: That's correct.
Defence Lawyer: And I gather that Patricia told you that she was pregnant ?
Benjamin: No, she didn't told me in a sense. No, she didn't told me in
sense that she was pregnant.
Defence Lawyer: She didn't tell you in a sense ?
Benjamin: No.
Defence Lawyer: She told you in some other sense that she was pregnant ?
Benjamin: Yeah.
Defence Lawyer; And that was a conversation between you and Patricia ?
Benjamin: Not really a conversation.
Defence Lawyer: You and Patricia were doing the talking -- or Patricia was doing
the talking and she suggested to you something you so you believed
she was pregnant ?
Benjamin: No.
Defence Lawyer: No ?
Benjamin: No. I saw her sitting looking in space and I ask her, what's
wrong with you; are you pregnant ? And she say, hm-hmm, that's
all.
Defence Lawyer: So she said hm-hmm in the affirmative ?
Benjamin: Yeah.
Defence Lawyer: Okay. Now, I guess you know that Patricia didn't tell Iona that
she was pregnant ?
Benjamin: I don't know.
Defence Lawyer: You don't know that ?
Benjamin: No.
Defence Lawyer: How many nights did you spend at Patricia's place Mr. Benjamin ?
Benjamin: I don't know how many nights. Several.
Defence Lawyer: Several ?
Benjamin: Yeah.
Davis' evidence on
the pregnancy:
Defence Lawyer: Miss Davis, did you know anything about Patricia being pregnant ?
Davis: She didn't tell it to me.
Defence Lawyer: Did you know anything about it ?
Davis: Delroy tell it to me.
Defence Lawyer: Do you remember when he told you about it ?
Davis: No.
Defence Lawyer: Did you find out anything about who was the father ?
Davis: No.
Defence Lawyer: Now, when Delroy told you about it, was it before or after
she died ?
Davis: Before she died.
Defence Lawyer: Now, was that when you were living with her ?
Davis: Yes.
Defence Lawyer: And Patricia is a good friend to you ?
Davis: Yes.
Defence Lawyer: And that was before she died. And were you staying with her at
that time ?
Davis: No.
Mr. Smith's Evidence
in brief:
Wilton Smith testified under oath that Ms. Innis told him in February, 1992 that she was pregnant with Delroy Benjamin's child. He testified that she decided to and did in fact have an abortion in the same month. According to Smith Davis moved in with Patricia Innis after the abortion. Mr. Smith told the jury that it was Ms. Innis who pushed him to assist Delroy in trying to find a job. Smith confirmed that at some point in February he did take Delroy to his place of work in search of work. However, he denied calling him on the morning of March 10th, 1992 to lure him out of the house. Instead - Smith told the jury a very different version of facts.
Patricia's call the
night before:
Wilton Smith testified that the night before the murder he received a call from Patricia Innis asking him to come over to her place. He testified that there was a lot of noise in the background but he could not identify who it was. He testified that he asked her what was wrong but she would not say other than to tell him to come over. Smith testified that he did not go as it was late but he called her in the morning and she again asked him to come over and he did.
According to Smith's testimony he arrived at the apartment and Davis, Benjamin, Innis and Ocheann were all in attendance. Wilton testified that Patricia was relaying some dissatisfaction pertaining to monies owed her by Delroy or something along those lines. He said he needed to urinate and accordingly entered the washroom and was in the process when he stated something to the effect - "I told you long ago to run those loafters out of your place." Delroy Benjamin exclaimed - "what did he say ?". Smith testified that Innis responded in an angry tone, "He said I should run you loafters out of my place." According to Smith this triggered a violent reaction from Benjamin who then rushed the washroom and started fighting with Smith. while the two men were fighting the deceased stated that she was going to call the police. According to Smith the two women then got into a very heated exchange of words where the deceased referred to Davis as a "mule" - a women who can not conceive and Davis fired back called the deceased a "cemetery" - a woman who has had an abortion. Wilton Smith testified that while he was fighting with Delroy he looked over and the deceased was on the floor with Davis standing over her with a bloody meat-cleaver in her hand. Smith testified that Delroy threatened that if he told anyone his mother would be dead. Smith said he ran out of the apartment in fear.
To be continued....
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance. The rule of law and democracy works best when ideas are freely exchanged.
As is so often the case in situations where the Defendant asserts that they were wrongly convicted, evidence presented at the trial puts a very different gloss on the initial police theory of the case. The Wilton Smith case is no exception and is somewhat unique. The case is unique because no one witnessed Wilton Smith commit the murder. No one placed Wilton Smith at the scene of the crime other than Wilton Smith himself. Iona Davis claimed that she discovered the dead body in the apartment that she shared with her and her infant child - Ocheann. The evidence offered by Iona Davis and Delroy Benjamin was that Wilton Smith drew Delroy Benjamin out of the house by telling him that his employer was hiring and that he Delroy should come down and apply for a job. While Delroy is away - someone sneeks into the home and murders Patrica Innis. This version of the murder does two things. Firstly, it tends to absolve Davis since she is the one who called the police. Secondly, it removes Delroy Benjamin from the crime scene and at the same time casts a shadow over Wilton Smith.
Analysis of police theory
of Wilton Smith liability:
The police theory of liability is crude and simplistic. Wilton Smith was awaiting trial on March 12th, 1992 on a charge of uttering a threat to cause death to Patricia Innis therefore he killed her so she could not testify against him. Iona Davis discovered the body and called the police. Delroy Benjamin was lured out of the house by Wilton Smith so that he could sneek in the apartment and murder Patricia Innis. After Wilton Smith is committed to stand trial police somehow attend at Joseph Pryce's place of employment with a photo-lineup prepared to show to him and he picks Smith out as "the man who came in to sharpen the machete." Pryce testified that he did not contact the police prior to this and they did not contact him. He said he was surprised when the police arrived and wanted to talk to him. Not surprisingly the jury found this quite remarkable and asked the trial judge how did the police come to know of Joseph Pryce. The judge told them there was in fact no evidence of this in the trial.
Was this a jealous spouse
murder ?
Iona Davis and Delroy Benjamin were a married couple. Evidence at the trial confirmed that prior to coming to Canada they lived as a couple, had two children together and were formally married in March 1993. Ms. Davis arrived in Canada from Jamaica on January 29th, 1992. Prior to her arrival in Canada, Mr. Benjamin was already in Canada and he admitted to sleeping at Ms. Innis' home "several times". Ms. Davis started residing with Ms. Innis in February - some two to three weeks prior to the murder on March 10th, 1992.
Did Mr. Benjamin
impregnate Patricia Innis ?
Wilton Smith testified at his trial that some time in February, 1992 Ms. Innis reluctantly informed him that she was pregnant and that Delroy Benjamin was the father. He further testified that she decided and to his knowledge she had an abortion some time in February. Mr. Smith testified that Ms. Innis was very ashamed of the situation and she requested that he keep it a secret and not tell anyone. Iona Davis testified that she was informed of Ms. Innis's pregnancy by Delroy Benjamin. Delroy Benjamin testified that Ms. Innis told him "in a sense that she was pregnant." Keep in mind the timing of these three incidents, namely, Iona Davis' moving in with Patricia Innis, news of the pregnancy and the abortion. Let us now examine the testimony around these issues:
Defence Lawyer: Now, the relationship that you had with Patricia we have
discussed. You guys were very, very good friends I think is how
you put it ?
Benjamin: That's correct.
Defence Lawyer: And I gather that Patricia told you that she was pregnant ?
Benjamin: No, she didn't told me in a sense. No, she didn't told me in
sense that she was pregnant.
Defence Lawyer: She didn't tell you in a sense ?
Benjamin: No.
Defence Lawyer: She told you in some other sense that she was pregnant ?
Benjamin: Yeah.
Defence Lawyer; And that was a conversation between you and Patricia ?
Benjamin: Not really a conversation.
Defence Lawyer: You and Patricia were doing the talking -- or Patricia was doing
the talking and she suggested to you something you so you believed
she was pregnant ?
Benjamin: No.
Defence Lawyer: No ?
Benjamin: No. I saw her sitting looking in space and I ask her, what's
wrong with you; are you pregnant ? And she say, hm-hmm, that's
all.
Defence Lawyer: So she said hm-hmm in the affirmative ?
Benjamin: Yeah.
Defence Lawyer: Okay. Now, I guess you know that Patricia didn't tell Iona that
she was pregnant ?
Benjamin: I don't know.
Defence Lawyer: You don't know that ?
Benjamin: No.
Defence Lawyer: How many nights did you spend at Patricia's place Mr. Benjamin ?
Benjamin: I don't know how many nights. Several.
Defence Lawyer: Several ?
Benjamin: Yeah.
Davis' evidence on
the pregnancy:
Defence Lawyer: Miss Davis, did you know anything about Patricia being pregnant ?
Davis: She didn't tell it to me.
Defence Lawyer: Did you know anything about it ?
Davis: Delroy tell it to me.
Defence Lawyer: Do you remember when he told you about it ?
Davis: No.
Defence Lawyer: Did you find out anything about who was the father ?
Davis: No.
Defence Lawyer: Now, when Delroy told you about it, was it before or after
she died ?
Davis: Before she died.
Defence Lawyer: Now, was that when you were living with her ?
Davis: Yes.
Defence Lawyer: And Patricia is a good friend to you ?
Davis: Yes.
Defence Lawyer: And that was before she died. And were you staying with her at
that time ?
Davis: No.
Mr. Smith's Evidence
in brief:
Wilton Smith testified under oath that Ms. Innis told him in February, 1992 that she was pregnant with Delroy Benjamin's child. He testified that she decided to and did in fact have an abortion in the same month. According to Smith Davis moved in with Patricia Innis after the abortion. Mr. Smith told the jury that it was Ms. Innis who pushed him to assist Delroy in trying to find a job. Smith confirmed that at some point in February he did take Delroy to his place of work in search of work. However, he denied calling him on the morning of March 10th, 1992 to lure him out of the house. Instead - Smith told the jury a very different version of facts.
Patricia's call the
night before:
Wilton Smith testified that the night before the murder he received a call from Patricia Innis asking him to come over to her place. He testified that there was a lot of noise in the background but he could not identify who it was. He testified that he asked her what was wrong but she would not say other than to tell him to come over. Smith testified that he did not go as it was late but he called her in the morning and she again asked him to come over and he did.
According to Smith's testimony he arrived at the apartment and Davis, Benjamin, Innis and Ocheann were all in attendance. Wilton testified that Patricia was relaying some dissatisfaction pertaining to monies owed her by Delroy or something along those lines. He said he needed to urinate and accordingly entered the washroom and was in the process when he stated something to the effect - "I told you long ago to run those loafters out of your place." Delroy Benjamin exclaimed - "what did he say ?". Smith testified that Innis responded in an angry tone, "He said I should run you loafters out of my place." According to Smith this triggered a violent reaction from Benjamin who then rushed the washroom and started fighting with Smith. while the two men were fighting the deceased stated that she was going to call the police. According to Smith the two women then got into a very heated exchange of words where the deceased referred to Davis as a "mule" - a women who can not conceive and Davis fired back called the deceased a "cemetery" - a woman who has had an abortion. Wilton Smith testified that while he was fighting with Delroy he looked over and the deceased was on the floor with Davis standing over her with a bloody meat-cleaver in her hand. Smith testified that Delroy threatened that if he told anyone his mother would be dead. Smith said he ran out of the apartment in fear.
To be continued....
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance. The rule of law and democracy works best when ideas are freely exchanged.
Saturday, January 1, 2011
DID POLICE RUSH TO JUDGEMENT IN WILTON SMITH'S CASE ?
As the new year arrives replacing the old one my mind is drawn once again to the plight of my client - Wilton Smith - who is serving a life sentence for a murder he maintains he did not commit. A careful review of the developments in his case from the preliminary inquiry judge's admonishment to the prosecutor that there was no evidence linking him to the murder to the unexplained discovery of a witness - Joseph Pryce - who testified that Wilton Smith attended at his shop to sharpen a machete raises some serious and troubling questions surrounding both the competence and ethics of the police investigation carried out by the Toronto Police Service.
A Rush to Judgement ?
On March 10th, 1992 Ms. Iona Davis called Toronto Police Service to report that she had discovered Patricia Innis' almost decapitated and lifeless body in the apartment which she was sharing with her and her infant daughter Ocheann. Wilton Smith was arrested and charged the next day. Ocheann was roughly two to three years or so at the time. Ms. Davis maintains that she did not witness the killing. She also maintains that she did not hear anything that would have alerted her to the situation. According to Ms. Davis' testimony she was giving the infant a bath and sometime after coming out into the living-room she made the grisley discovery and that Ocheann told her to call the police. This is how the testimony went:
Prosecutor: And Ocheann said she wanted her mommy ?
Ms. Davis: Yes
Prosecutor: What did you do ?
Ms. Davis: I take her to the living room and that's when I saw Patricia lying
on the floor.
Prosecutor: All right. And what happened ?
Ms. Davis: She say I must call the police because her mommy is hurt and I
went back...
Prosecutor: This is Ocheann said...
THE COURT: No, no. She said it.
Ms. Davis: Ocheann said it.
Iona Davis and Delroy Benjamin: A closer look
Iona Davis was residing with Ms. Innis at the time of the murder. She was a close friend of both Iona Davis and her husband Delroy Benjamin. Iona Davis was the God-Mother of Ms. Innis' daughter, Ocheann. God-parents are typically supposed to step in the shoes of a child's parents should death or some other unfortunate event prevent them from discharging their parenting duty. Poor Ocheann was shocked to learn recently that her God-Mother - Iona Davis resides in Toronto. Poor Ocheann was made to understand that her God-Mother had returned home to Jamaica. As fate would have it both Ocheann and Iona Davis have Facebook pages indicating they each reside in Toronto. One wonders why Iona Davis would abandon poor Ocheann following her mother's brutal murder. This makes no sense. The answer to that pressing question may be found in Wilton Smith's testimony at his trial.
Wilton Smith testified at his trial that Ms. Iona Davis killed Ms. Innis by violently striking her in the neck with a meatcleaver - almost severing her neck from her body. Mr. Smith testified that her boyfriend and now husband, Mr. Delroy Benjamin was present and threatened him that if he told anyone he would kill or harm his mother. Iona Davis does not put either Wilton Smith or Delroy Benjamin at the scene of the crime. However, Detective Bronson, the officer in charge of the investigation testified that while police were at the crime scene Delroy Benjamin called using a false name seeking to speak to the deceased. The police notes also confirm that Ms. Davis initially did not place Delroy Benjamin at the Innis apartment on the day of the murder but later acknowledged that he was there and left before she discovered the body. Ms. Innis did not inform police that Delroy Benjamin was her husband. They had children together prior to coming to Canada from their native Jamaica. Ms. Davis was on a vistor's visa which was to expire on March 31st, 1991. Mr. Benjamin's visa was either expired or close to experiation at the time. Police and or the Crown secured extensions for each of them. According to her Facebook page - Ms. Davis lives in Toronto today.
Was Delroy Benjamin
a party to the offence ?
Wilton Smith clearly implicated both Iona Davis and Delroy Benjamin in the death of Patricia Innis. However, neither Ms. Davis or Mr. Benjamin implicated Wilton Smith in the crime. I have carefully reviewed the testimony given by Mr. Benjamin at Wilton Smith's trial and I found his testimony to lack logical consistency and therefore credibility. For examample, Mr. Benjamin actually telephoned Patricia Innis' home on March 10th, 1992 while Detective Bronson and others were at the crime scene responding to Iona Davis's call regarding her grisly discovery. This on its own is not all that unusual. However, what is very unusual is that Detective Bronson answered the phone and told him that she was unable to come to the phone at this time. Detective Bronson testified that Mr. Benjamin identified himself in that call as Patrick Clarke for some reason. The prosecutor attempted to get an explanation from Mr. Benjamin for why he identified himself as Patrick Clark. His evidence was nonsensical to me. I will reproduce it below to illustrate my point.
Prosecutor: You left. What did you do when you left ?
Benjamin: Well, I walk along the way to -- back to Wallace and spend sometime
at my friend's house. Then I call Patricia.
Prosecutor: You called Patricia ?
Benjamin: Yeah
Prosecutor: What happened when you called Patricia ?
Benjamin: I don't get her. I get somebody else on the line.
Prosecutor: Male or female ?
Benjamin: Male.
Prosecutor: What did the male say ?
Benamin: He says Patricia can't come to the phone just now.
Prosecutor: Who did you say you were ?
Benjamin: I say I was -- I said I was Patrick Clarke.
Prosecutor: Patrick Clarke ?
Benjamin: Yes
Prosecutor: And why did you say you were Patrick Clarke ?
The Court: You didn't recognize it ? It wasn't Sammy, I guess, that was
answering. It was some other male, right ?
Benjamin: It was Mr. Bronson answer the phone.
Teh Court: Who answered ?
Benjamin: Mr. Bronson.
The Court: Oh, detective. Oh, all right. So it was a police officer.
Prosecutor: What time of the day - I should ask you this, Mr. Benjamin.
What time of the day was this ?
Benjamin: It was nearly 4.
Prosecutor: Nearly 4. So can you recall how this conversation went ? You rang.
You said it was Detective Bronson on the phone. You didn't know
know that at the time though ?
Benjamin: No. After I saw him, I recognize his voice, so I know it was him.
Prosecutor: Now, why did you tell him you were Patrick Clark ?
Benjamin: Well, if was at my friend or my cousin and I call, when she pick
the phone, oh, I think it's Patrick.
Prosecutor: When you call who ?
Benjamin: When I call, Patricia say, oh, I think it's Patrick. So I just
said I'm Patrick.
Prosecutor: So when you call Patricia in times past fro your cousins's ?
Benjamin: Yeah, or my friend.
Prosecutor: Or your friend, Patricia would pick up the phone and say into
the phone to you, oh, I think it's Patrick ?
Benjamin: Yes.
Prosecutor: How many times did this happen ?
Benjamin: Several.
Prosecutor: What was that all about ?
Benjamin: I don't know.
Prosecutor: Do you know why she said, oh, I think it's Patrick ?
Benjamin: Oh, she was referring to her friend.
Prosecutor: Hm - hmm.
Benjamin: She was referrring to her friend.
Prosecutor: To her friend ?
Benjamin: Yeah.
Prosecutor: So I'm not clear though why you told Det. Bronson that you
were Patrick Clarke.
Benjamin: Well, he way, Patricia can't come to the phone, so I figure
she's busy or something, so if I say I'm Patrick, you know,
that would speed her up.
Prosecutor: Oh, I see.
With the greatest of respect to the prosecutor I fail to see that Mr. Benjamin provided her with an answer to the very important question that she asked. To compound my difficulties with his evidence - it appears that Mr. Benjamin then took it upon himself to contact the police. The following passage from his testimony speaks to this point:
Prosecutor: Did you - did you eventually get in touch with the police ?
Benjamin: Yeah.
Prosecutor: When ?
Benjamin: I call the apartment two time after and I don't get nobody.
so my friend Abdul sitting next to me and I'm telling him what
happened. I said, I'm calling and I can't get nobody. He said,
you never get nobody ? I say, yeah, I call once and I get somebody
and I get police. He said, police doesn't answer people phone
unless something is wrong. So he looked up the number in the
directory and we called it.
Prosecutor: And that's how you come to...see the police ?
Benjamin: Yeah.
Prosecutor: Did you go to see them ?
Benjamin: Yeah, I did.
Analysis of Benjamin Evidence
Regarding Patrick Clarke call:
The Crown theory was that Wilton Smith lured Mr. Benjamin out of the house so that he could kill Patricia Innis. Mr. Benjamin testified that the deceased woke him up at about 9 a.m. that morning and told him that Mr. Smith was on the phone for him. Mr. Benjamin testified that Mr. Smith told him that his employer was hiring and that he ought to come in to fill in application prior to 1:30 p.m. Mr. Benjamin testified that he attended at Mr. Smith's place of work and someone named, Nick told him that they were not hiring. According to Mr. Benjamin he arrived at Mr. Smith's place of employment at roughly 1:23 p.m. He did not testify as to when he left. From there he testified that he went to his friends house and called Patricia.
If one is to accept Mr. Benjamin's version of events then one wonders why he did not ask to speak to his wife - Iona Davis when he called. He left her there with Patricia according to his version of facts. Also, one wonders why he did not ask for the identity of the person who answered the phone. This was a place where his wife was living and where he had actually slept the night before. Obviously, he knew the man was not Wilton Smith. Why the need to conceal his identity ?
On the other hand, if one accepts Wilton Smith's version of the events along with the fact that Iona Davis is said to have discovered the body and called the police - it makes perfect sense - especially when combined with the evidence that Iona Davis tried to suggest that Mr. Benajamin was not at the apartment at all - that he would call to see what was going on since he left his wife at the crime scene. It would stand to reason under this version of events that Mr. Benjamin's call was to obtain an update and to distance himself from the crime. I wasn't there. I don't know. Mr. Benjamin's contradictory evidence with respect to when he came to know the identify of the man who answered the phone is very tellling. At first he testifed in response to questions from the prosecutor that he came to learn that it was Det. Bronson who answered the phone after he met Det. Bronson that night and he heard his voice again. However, later on in the same line of questioning he says that he called a few times and got no answer and discussed this with his friend and he informed his friend that a police officer answered the phone.
Conclusion:
Wilton Smith was arreted and charged the day following the murder. Why the rush ? What kind of investigation could be done so quickly ? Truth can be surpressed but never destroyed. Evidence and truth are not always the same thing. Evidence can be flawed or fabricated. Evidence is subject to the inherent frailties of human observation. Improper motives and the like can colour and distort evidence and surpress truth. The truth in this case may have been perverted or surpressed but in the same way that the sun rises every morning so too will the truth of what happened to poor little Ocheann's late mother rise up for all to know.
In the next issue I will outline evidence pointing to an improper motive along with other points that ought to have been investigated by police and were not.
NOTE: This piece is written for the sole purpose of shedding light on an issue of public importance. Democracy and the rule of law work best when individuals are able to exchange ideas on issues of public importance.
A Rush to Judgement ?
On March 10th, 1992 Ms. Iona Davis called Toronto Police Service to report that she had discovered Patricia Innis' almost decapitated and lifeless body in the apartment which she was sharing with her and her infant daughter Ocheann. Wilton Smith was arrested and charged the next day. Ocheann was roughly two to three years or so at the time. Ms. Davis maintains that she did not witness the killing. She also maintains that she did not hear anything that would have alerted her to the situation. According to Ms. Davis' testimony she was giving the infant a bath and sometime after coming out into the living-room she made the grisley discovery and that Ocheann told her to call the police. This is how the testimony went:
Prosecutor: And Ocheann said she wanted her mommy ?
Ms. Davis: Yes
Prosecutor: What did you do ?
Ms. Davis: I take her to the living room and that's when I saw Patricia lying
on the floor.
Prosecutor: All right. And what happened ?
Ms. Davis: She say I must call the police because her mommy is hurt and I
went back...
Prosecutor: This is Ocheann said...
THE COURT: No, no. She said it.
Ms. Davis: Ocheann said it.
Iona Davis and Delroy Benjamin: A closer look
Iona Davis was residing with Ms. Innis at the time of the murder. She was a close friend of both Iona Davis and her husband Delroy Benjamin. Iona Davis was the God-Mother of Ms. Innis' daughter, Ocheann. God-parents are typically supposed to step in the shoes of a child's parents should death or some other unfortunate event prevent them from discharging their parenting duty. Poor Ocheann was shocked to learn recently that her God-Mother - Iona Davis resides in Toronto. Poor Ocheann was made to understand that her God-Mother had returned home to Jamaica. As fate would have it both Ocheann and Iona Davis have Facebook pages indicating they each reside in Toronto. One wonders why Iona Davis would abandon poor Ocheann following her mother's brutal murder. This makes no sense. The answer to that pressing question may be found in Wilton Smith's testimony at his trial.
Wilton Smith testified at his trial that Ms. Iona Davis killed Ms. Innis by violently striking her in the neck with a meatcleaver - almost severing her neck from her body. Mr. Smith testified that her boyfriend and now husband, Mr. Delroy Benjamin was present and threatened him that if he told anyone he would kill or harm his mother. Iona Davis does not put either Wilton Smith or Delroy Benjamin at the scene of the crime. However, Detective Bronson, the officer in charge of the investigation testified that while police were at the crime scene Delroy Benjamin called using a false name seeking to speak to the deceased. The police notes also confirm that Ms. Davis initially did not place Delroy Benjamin at the Innis apartment on the day of the murder but later acknowledged that he was there and left before she discovered the body. Ms. Innis did not inform police that Delroy Benjamin was her husband. They had children together prior to coming to Canada from their native Jamaica. Ms. Davis was on a vistor's visa which was to expire on March 31st, 1991. Mr. Benjamin's visa was either expired or close to experiation at the time. Police and or the Crown secured extensions for each of them. According to her Facebook page - Ms. Davis lives in Toronto today.
Was Delroy Benjamin
a party to the offence ?
Wilton Smith clearly implicated both Iona Davis and Delroy Benjamin in the death of Patricia Innis. However, neither Ms. Davis or Mr. Benjamin implicated Wilton Smith in the crime. I have carefully reviewed the testimony given by Mr. Benjamin at Wilton Smith's trial and I found his testimony to lack logical consistency and therefore credibility. For examample, Mr. Benjamin actually telephoned Patricia Innis' home on March 10th, 1992 while Detective Bronson and others were at the crime scene responding to Iona Davis's call regarding her grisly discovery. This on its own is not all that unusual. However, what is very unusual is that Detective Bronson answered the phone and told him that she was unable to come to the phone at this time. Detective Bronson testified that Mr. Benjamin identified himself in that call as Patrick Clarke for some reason. The prosecutor attempted to get an explanation from Mr. Benjamin for why he identified himself as Patrick Clark. His evidence was nonsensical to me. I will reproduce it below to illustrate my point.
Prosecutor: You left. What did you do when you left ?
Benjamin: Well, I walk along the way to -- back to Wallace and spend sometime
at my friend's house. Then I call Patricia.
Prosecutor: You called Patricia ?
Benjamin: Yeah
Prosecutor: What happened when you called Patricia ?
Benjamin: I don't get her. I get somebody else on the line.
Prosecutor: Male or female ?
Benjamin: Male.
Prosecutor: What did the male say ?
Benamin: He says Patricia can't come to the phone just now.
Prosecutor: Who did you say you were ?
Benjamin: I say I was -- I said I was Patrick Clarke.
Prosecutor: Patrick Clarke ?
Benjamin: Yes
Prosecutor: And why did you say you were Patrick Clarke ?
The Court: You didn't recognize it ? It wasn't Sammy, I guess, that was
answering. It was some other male, right ?
Benjamin: It was Mr. Bronson answer the phone.
Teh Court: Who answered ?
Benjamin: Mr. Bronson.
The Court: Oh, detective. Oh, all right. So it was a police officer.
Prosecutor: What time of the day - I should ask you this, Mr. Benjamin.
What time of the day was this ?
Benjamin: It was nearly 4.
Prosecutor: Nearly 4. So can you recall how this conversation went ? You rang.
You said it was Detective Bronson on the phone. You didn't know
know that at the time though ?
Benjamin: No. After I saw him, I recognize his voice, so I know it was him.
Prosecutor: Now, why did you tell him you were Patrick Clark ?
Benjamin: Well, if was at my friend or my cousin and I call, when she pick
the phone, oh, I think it's Patrick.
Prosecutor: When you call who ?
Benjamin: When I call, Patricia say, oh, I think it's Patrick. So I just
said I'm Patrick.
Prosecutor: So when you call Patricia in times past fro your cousins's ?
Benjamin: Yeah, or my friend.
Prosecutor: Or your friend, Patricia would pick up the phone and say into
the phone to you, oh, I think it's Patrick ?
Benjamin: Yes.
Prosecutor: How many times did this happen ?
Benjamin: Several.
Prosecutor: What was that all about ?
Benjamin: I don't know.
Prosecutor: Do you know why she said, oh, I think it's Patrick ?
Benjamin: Oh, she was referring to her friend.
Prosecutor: Hm - hmm.
Benjamin: She was referrring to her friend.
Prosecutor: To her friend ?
Benjamin: Yeah.
Prosecutor: So I'm not clear though why you told Det. Bronson that you
were Patrick Clarke.
Benjamin: Well, he way, Patricia can't come to the phone, so I figure
she's busy or something, so if I say I'm Patrick, you know,
that would speed her up.
Prosecutor: Oh, I see.
With the greatest of respect to the prosecutor I fail to see that Mr. Benjamin provided her with an answer to the very important question that she asked. To compound my difficulties with his evidence - it appears that Mr. Benjamin then took it upon himself to contact the police. The following passage from his testimony speaks to this point:
Prosecutor: Did you - did you eventually get in touch with the police ?
Benjamin: Yeah.
Prosecutor: When ?
Benjamin: I call the apartment two time after and I don't get nobody.
so my friend Abdul sitting next to me and I'm telling him what
happened. I said, I'm calling and I can't get nobody. He said,
you never get nobody ? I say, yeah, I call once and I get somebody
and I get police. He said, police doesn't answer people phone
unless something is wrong. So he looked up the number in the
directory and we called it.
Prosecutor: And that's how you come to...see the police ?
Benjamin: Yeah.
Prosecutor: Did you go to see them ?
Benjamin: Yeah, I did.
Analysis of Benjamin Evidence
Regarding Patrick Clarke call:
The Crown theory was that Wilton Smith lured Mr. Benjamin out of the house so that he could kill Patricia Innis. Mr. Benjamin testified that the deceased woke him up at about 9 a.m. that morning and told him that Mr. Smith was on the phone for him. Mr. Benjamin testified that Mr. Smith told him that his employer was hiring and that he ought to come in to fill in application prior to 1:30 p.m. Mr. Benjamin testified that he attended at Mr. Smith's place of work and someone named, Nick told him that they were not hiring. According to Mr. Benjamin he arrived at Mr. Smith's place of employment at roughly 1:23 p.m. He did not testify as to when he left. From there he testified that he went to his friends house and called Patricia.
If one is to accept Mr. Benjamin's version of events then one wonders why he did not ask to speak to his wife - Iona Davis when he called. He left her there with Patricia according to his version of facts. Also, one wonders why he did not ask for the identity of the person who answered the phone. This was a place where his wife was living and where he had actually slept the night before. Obviously, he knew the man was not Wilton Smith. Why the need to conceal his identity ?
On the other hand, if one accepts Wilton Smith's version of the events along with the fact that Iona Davis is said to have discovered the body and called the police - it makes perfect sense - especially when combined with the evidence that Iona Davis tried to suggest that Mr. Benajamin was not at the apartment at all - that he would call to see what was going on since he left his wife at the crime scene. It would stand to reason under this version of events that Mr. Benjamin's call was to obtain an update and to distance himself from the crime. I wasn't there. I don't know. Mr. Benjamin's contradictory evidence with respect to when he came to know the identify of the man who answered the phone is very tellling. At first he testifed in response to questions from the prosecutor that he came to learn that it was Det. Bronson who answered the phone after he met Det. Bronson that night and he heard his voice again. However, later on in the same line of questioning he says that he called a few times and got no answer and discussed this with his friend and he informed his friend that a police officer answered the phone.
Conclusion:
Wilton Smith was arreted and charged the day following the murder. Why the rush ? What kind of investigation could be done so quickly ? Truth can be surpressed but never destroyed. Evidence and truth are not always the same thing. Evidence can be flawed or fabricated. Evidence is subject to the inherent frailties of human observation. Improper motives and the like can colour and distort evidence and surpress truth. The truth in this case may have been perverted or surpressed but in the same way that the sun rises every morning so too will the truth of what happened to poor little Ocheann's late mother rise up for all to know.
In the next issue I will outline evidence pointing to an improper motive along with other points that ought to have been investigated by police and were not.
NOTE: This piece is written for the sole purpose of shedding light on an issue of public importance. Democracy and the rule of law work best when individuals are able to exchange ideas on issues of public importance.
Wednesday, December 22, 2010
Race and Windsor's Dean Search
I have been observing from the distance Dr. Emily Carasco's human rights litigation against the University of Windsor's Faculty of Law. Dr. Carsco - who is a woman of Indo-Canadian background - was an unsuccessful candiate for the vacant position of Dean of the Faculty of Law. She filed a human rights complaint with the Ontario Human Rights Tribunal asserting that the school had violated her right to be free from discrimination on the basis of race by over-looking her for the position.
In responding to her complaint the school retained high profile union/human rights lawyer Mr. Raj Anand to argue that the school's acts and omissions in the search for a Dean was devoid of any racial animus and thus not in violation of the Ontario Human Rights Code. Mr. Anand - like Dr. Carasco is of Indo-Canadian background. If the University of Windsor retained Mr. Anand because of his Indo-Canadian background they are well within their legal rights to do so but if nothing more the optics of their choice of counsel reminds me of the popular anti-racist response "some of my best friends are Indo-Canadian." It may be that I am less than objective on this issue since the same Mr. Anand once represented me in litigation against the same University of Windsor. I don't know. Mr. Anand is by all accounts an outstanding laywer. It may be that nothing short of an Indo-Canadian lawyer can competently represent the University of Windsor in this particular litigation. It may be that this is all a coincidence - Mr. Anand is an outstanding human rights lawyer who so happens to be of Indo-Canadian background.
NOTE: This piece is written for the sole purpose of shedding light on an issue of public importance. It is recognized that parties are free to retain the lawyer of their choice.
In responding to her complaint the school retained high profile union/human rights lawyer Mr. Raj Anand to argue that the school's acts and omissions in the search for a Dean was devoid of any racial animus and thus not in violation of the Ontario Human Rights Code. Mr. Anand - like Dr. Carasco is of Indo-Canadian background. If the University of Windsor retained Mr. Anand because of his Indo-Canadian background they are well within their legal rights to do so but if nothing more the optics of their choice of counsel reminds me of the popular anti-racist response "some of my best friends are Indo-Canadian." It may be that I am less than objective on this issue since the same Mr. Anand once represented me in litigation against the same University of Windsor. I don't know. Mr. Anand is by all accounts an outstanding laywer. It may be that nothing short of an Indo-Canadian lawyer can competently represent the University of Windsor in this particular litigation. It may be that this is all a coincidence - Mr. Anand is an outstanding human rights lawyer who so happens to be of Indo-Canadian background.
NOTE: This piece is written for the sole purpose of shedding light on an issue of public importance. It is recognized that parties are free to retain the lawyer of their choice.
Subscribe to:
Posts (Atom)